ACCIDENT COMPENSATION – Application for leave to appeal – Workplace accident – Serious injury application – Lower back injury – Credit issues – Credibility of applicant – Adverse credit findings – Surveillance evidence – Use of surveillance evidence – Church v Echuca Regional Health [2008] 20 VR 566 referred to – Implausible evidence – Findings not glaringly improbable or contrary to compelling inferences – Reasons – Adequacy of reasons – Not reasonably arguable that reasons inadequate – Application for leave to appeal refused – Workplace Injury Rehabilitation and Compensation Act 2013, ss 325 and 335.
---
APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr M J Walsh with Mr G Taylor
Dimitra Panagopoulos
For the Respondent
Mr S A O’Meara QC with Ms M Norton
Wisewould Mahony
BEACH JA
KAYE JA CROUCHER AJA:
On 16 March 2015, the applicant injured his lower back while lifting a heavy box in the course of his employment with the respondent (‘the accident’).
By an originating motion filed in the County Court on 28 June 2018, the applicant sought leave pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) to commence a proceeding at common law claiming damages for his injury.
The application was heard over two days in December 2018. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 325(1) of the Act (‘permanent serious impairment or loss of a body function’). The body function relied upon by the applicant was the function of his spine. The applicant sought leave to commence a proceeding claiming both damages for ‘pain and suffering’ and ‘pecuniary loss damages’.[1]
[1]As those expressions are defined in s 325(1) of the Act.
At the hearing of the application, the respondent did not dispute that the applicant had suffered a compensable injury. The respondent, however, disputed whether the applicant’s injury was serious within the meaning of s 325(2)(c) and whether, in any event, the applicant had established a loss of earning capacity of 40 per cent or more as required by s 325(2)(e) of the Act.
On 1 February 2019, the judge dismissed the applicant’s application.[2] The judge dismissed the application because she was not satisfied that the applicant’s injury was serious within the meaning of the Act.[3] The judge was also not satisfied that the applicant had established the 40 per cent loss of earning capacity required by s 325(2)(e). The foundation of the judge’s decision against the applicant was an unfavourable view her Honour took of the applicant’s credit.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Johns v Oaktech Pty Ltd
Sign in free to access the full text
Details
AGLC
Johns v Oaktech Pty Ltd [2020] VSCA 10
Case
[2020] VSCA 10
Decision Date
CaseChat Overview and Summary
The applicant, Johns, sought leave to appeal against the decision of Oaktech Pty Ltd regarding his application for serious injury compensation. The dispute arose following an incident at work where Johns sustained a lower back injury. The case was heard in the Court of Appeal of the Supreme Court of Victoria.
The legal issues centred on the adequacy of the reasons provided by the tribunal in making adverse credit findings about Johns' credibility. The applicant contended that the tribunal's reliance on surveillance evidence was misplaced and that the tribunal had erred in finding his evidence implausible. He argued that the tribunal's reasons were inadequate and that it was reasonably arguable that the tribunal had erred in law.
The Court of Appeal held that the tribunal's findings were not glaringly improbable or contrary to compelling inferences, and that the reasons provided were adequate. The Court referred to the decision in Church v Echuca Regional Health to support its view that the tribunal's findings were not manifestly unjust. The Court also found that it was not reasonably arguable that the tribunal's reasons were inadequate. Consequently, the application for leave to appeal was refused.